Fraczyk v Spicer Axle Australia Pty Ltd
[2006] NSWWCCPD 20
•16 February 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Fraczyk v Spicer Axle Australia Pty Ltd [2006] NSWWCCPD 20
APPELLANT: Zbigniew Fraczyk
RESPONDENT: Spicer Axle Australia Pty Limited
INSURER:CGU Workers Compensation (NSW) Pty Ltd
FILE NUMBER: WCC13407-05
DATE OF ARBITRATOR’S DECISION: 15 November 2005
DATE OF APPEAL DECISION: 16 February 2006
SUBJECT MATTER OF DECISION: Whether issues referred to Approved Medical Specialist are medical disputes; sections 319 and 321 Work Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:8 February 2006
REPRESENTATION: Appellant: Jones Staff & Co, lawyers
Respondent: Lee & Lyons Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to the costs of this appeal.
BACKGROUND TO THE APPEAL
Mr Zbigniew Fraczyk, the Appellant, commenced full-time employment with the Respondent Employer, Spicer Axle Australia Pty Ltd (‘Spicer Axle’), on 18 May 1994. He was employed as a machine operator, which involved the assembly of differentials for Ford and Holden motor vehicles.
Mr Fraczyk claims that he sustained a work-related injury to his right wrist on 31 July 2001 and a further work-related injury to his neck on 5 November 2001.
On 5 November 2001 Mr Fraczyk lodged a claim for workers compensation with Spicer Axle’s insurer at that time, NRMA Workers Compensation (NSW)(No.2) Pty Limited (‘NRMA’).
On 4 April 2002 liability was declined by NRMA and weekly compensation payments and payment of medical expenses ceased from this date.
On 5 August 2005 Mr Fraczyk lodged an ‘Application to Resolve a Dispute’ with the Workers Compensation Commission (‘Commission’). The Application was registered with the Commission on 9 August 2005. The basis of his claim is that he suffered injuries to his neck and left and right arms above the elbows, arising from the “nature and conditions” of his employment, as a machine operator with Spicer Axle between 1 July 1998 and 5 November 2001. He claims weekly benefits of compensation for the period 4 April 2002 to date and continuing, medical expenses and compensation pursuant to section 66 of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 18 October 2005 the Arbitrator referred Mr Fracyzk to attend an assessment, pursuant to an ‘Assessment of General Medical Dispute by an Approved Medical Specialist’ (‘referral’). The assessment was scheduled for 21 November 2005.
Approved Medical Specialist is hereinafter referred to as ‘AMS’.
On 28 October 2005 the Solicitors for Mr Fracyzk wrote to the Commission requesting that an amended AMS referral be issued as the referral did not fall within the ambit of section 319 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
On 3 November 2005 the Arbitrator issued an amended AMS referral. The amendments involved the correction of the numbering of the questions and the removal of the seventh question (incorrectly numbered as 5), which read, “Was the worker’s employment a substantial contributing factor to his permanent impairment, if any?”
Both parties were notified of this amended AMS referral by facsimile on 4 November 2005.
On 7 November 2005 the Solicitors for Mr Fraczyk’s Solicitor again wrote to the Commission stating that the questions contained in the amended AMS referral still did not fall within the section 319 definitions, and requested that Dr Harrison, AMS, should be directed not to respond to them.
On 15 November 2005 the Commission wrote to Mr Fracyzk’s Solicitors advising that the Arbitrator had reviewed the matter and determined that pursuant to section 319(b) and section 354 of the 1998 Act, the “Amended General Medical Dispute” questions were to be put to Dr Harrison. The Commission’s letter also drew attention to Practice Direction 6 in relation to the process for disputing the Arbitrator’s decision.
On 21 November 2005 the AMS provided a ‘Medical Assessment Certificate’ (‘MAC’) for Mr Fraczyk. This was headed “Assessment of General Medical Dispute”, and included the original question 7 and the relevant answer, referring to the issue of permanent impairment. A second MAC headed “Assessment of Degree of Permanent Impairment” and dated 21 November 2005, was also issued by the AMS. In addition to a substantial amount of information about permanent impairment, that document also contained the same seven questions and answers as were contained in the first MAC. Question 7 as to permanent impairment is not the subject of this appeal. Notwithstanding the AMS’s response, the amended ‘Request for Assessment of General Medical Dispute by Approved Medical Specialist’ [referral] dated 3 November 2005 that was sent to the AMS, contains questions 1 to 6 only, which are the subject of this appeal.
On 14 December 2005 Mr Fraczyk lodged an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against the Arbitrator’s decision to refer the matter to an AMS Referral for General Medical Dispute, the grounds being that the questions are not medical disputes within the definition in section 319 of the 1998 Act.
On 8 February 2005, during the telephone hearing of the appeal before me, the Solicitor for Spicer Axle stated that he had recently received a copy of the MAC.
THE DECISION UNDER REVIEW
The decision in dispute is the decision of the Arbitrator to proceed with the amended referral to the AMS for ‘Assessment of General Medical Dispute by an Approved Medical Specialist’ that is dated 3 November 2005.
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether questions 1 to 6 in the amended AMS referral are medical disputes as defined in section 319 of the 1998 Act. It was agreed by both parties that the other part of the amended AMS referral relates to section 66 of the 1987 Act and does not form part of this appeal. The questions were as follows:
1. Was the worker’s employment a substantial contributing factor to his injuries?
2. Was the worker’s employment a substantial contributing factor to his condition from 04/04/2002 to date and continuing?
3. Was the worker totally incapacitated for any employment from 04/04/2002 to date and continuing? If so please specify the extent to which it was attributable to the injuries or the nature and conditions of his employment or the aggravation, exacerbation or acceleration of a disease, or any degenerative or constitutional condition, or any underlying disease or other non-work related condition?
4. If the worker was not totally incapacitated for any employment for the above periods, was the worker partially incapacitated and fit for any alternative employment. If so what duties was he capable of performing and what, if any restrictions should have been placed on the worker in performing those duties, and how many hours per week do you consider the worker was capable of performing in those duties?
5. If the worker was partially incapacitated for employment for the above periods please specify the extent to which it was attributable to the injuries, the nature and conditions of his employment or the aggravation, exacerbation or acceleration of a disease, or any degenerative, or constitutional condition, or any underlying disease, or other non-work related condition?
6. To what extent was the worker capable of working for the above periods if he did not have any degenerative, or constitutional condition, or any underlying disease or other non-work related condition?
HEARING
A teleconference hearing in this appeal was held on 8 February 2006 at 11.00am. Both parties were legally represented at the hearing. The decision was reserved.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on appeal exceeds $5,000, but the Arbitrator made no award of compensation in the decision appealed against. Consequently, section 352(2)(a) of the 1998 Act is satisfied and section 352(2)(b) has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5; ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21; Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7).
The appeal was lodged on 14 December 2005 and registered in the Commission on 15 December 2005. Mr Fraczyk submits that the appeal was lodged in time as the 28 days ran from 17 November 2005, being the date of receipt the OF Commission’s letter of 15 November 2005, which contained the Arbitrator’s determination in relation to the referral to the AMS. This is not strictly correct, as nowhere is there provision for time within which an appeal must be lodged, to run from the date of receipt of advice of an Arbitrator’s decision. Spicer Axle was aware of these submissions and offered no objections at the hearing. Spicer Axle provided no written submissions on appeal prior to the hearing.
I have regard to the fact that the original objections to the referral formed the basis of correspondence that passed between the Commission and Mr Fraczyk’s Solicitor. The Arbitrator’s decision to submit an amended referral was made on 3 November 2005. Following receipt of a letter from Mr Fraczyk’s Solicitor, the matter was again referred to the Arbitrator for further consideration. The Arbitrator did give the matter further consideration but declined to accede to further amend the referral to the AMS. I am unable to ascertain by reference to the file, the actual date on which the Arbitrator further considered the matter and decided not to further amend the referral to the AMS. The Manager, Dispute Services, then wrote to Mr Fraczyk’s Solicitor by letter dated 15 November 2005, and informed him of the Arbitrator’s decision not to further amend the AMS referral. He invited attention to Practice Direction 6 ‘Appeal Against a Decision of the Commission Constituted by an Arbitrator’. It is not clear whether that was the end of the exchange between the Commission and Mr Fraczyk’s Solicitor, although the next document on file is the “Appeal Against Decision of Arbitrator’, lodged on 14 December 2005 and therefore, apparently, one day late.
The circumstances surrounding the matter leading to the appeal are not particularly clear, and appear to be somewhat unusual and exceptional. The on-going decision-making process accommodated by the Commission up to the point of appeal was unusual, and the actual date on which it can be said that the Arbitrator made his ‘final’ decision, is uncertain. However, it seems that the Commission staff acted in good faith by attempting, during this period, to settle the issues raised by the Solicitor for Mr Fraczyk, with the Arbitrator. For these reasons, and in the absence of objection by Spicer Axle, I am satisfied that to lose the right to seek leave to appeal would work demonstrable and substantial injustice. Accordingly, pursuant to Rule 77(8) of the Workers Compensation Commission Rules 2003 (‘the Rules’), I extend the time for making this appeal so that it is made within the 28 days prescribed by section 352 (4) of the 1998 Act.
Leave to appeal is granted.
EVIDENCE AND SUBMISSIONS
The oral submissions made by Mr Fraczyk’s Solicitor, Mr Brennan, at the teleconference held on 8 February 2005, may be summarised as follows:
the six questions in the AMS referral did not fall within the ambit of the legislation, in that they are not medical disputes as defined in section 319 of the 1998 Act;
question number one is a section 9A (of the 1987 Act) question and does not fall within the definition of ‘medical dispute’ pursuant to section 319 of the 1998 Act;
question number two is a continuation of question one and again, is a section 9A question;
question three is not a fitness for employment question. It was submitted that fitness for employment and incapacity are two different issues and that incapacity is an issue that an Arbitrator must decide on the evidence, and it is therefore, not a medical dispute;
in relation to question four it was submitted that the AMS has no evidence to make a determination of the issues raised in this question;
question five is a causation question and does not fall within the ambit of section 319;
question six is difficult to understand and does not fall within the ambit of section 319;
pursuant to section 321 of the 1998 Act, only medical disputes can be referred and in this case the questions do not fall within the section 319 definition, and
it was further submitted that many of the questions have several elements and if one of those elements dealt with is incorrect, for example causation, which is not a medical dispute, it “kills” the whole question.
The oral submissions made by Spicer Axle’s solicitor, Mr Calnan, at the teleconference may be summarised as follows:
the six questions clearly fall within the ambit of section 319 of the 1998 Act. It is clearly a medical dispute between the parties and relevant to this dispute is the matter of the degree of Mr Franczyk’s incapacity and the issues of causation;
question one does fall within the ambit of section 319(a) of the 1998 Act as the question includes the worker’s prognosis and the aetiology of the condition. Aetiology relates to the cause of any condition, including diseases and is therefore relevant as it is a nature and conditions claim which includes the issue of whether or not the worker’s condition is constitutional and/or indeed related to his employment;
question two is the same issue as question one and falls within section 319(a) of the 1998 Act;
question three falls within the ambit of section 319(b) of the 1998 Act and that to differentiate between fitness for employment and questions of incapacity is “really a fine line and perhaps a question of semantics” . It was submitted that in assessing the worker’s fitness for employment it also addresses the issue of capacity for work;
question four also falls within the ambit of section 319 of the 1998 Act. It was also submitted that there is no reason why the Arbitrator cannot rely on the issues addressed by the AMS and that although they may not be binding in accordance with section 326 of the 1998 Act, they can assist the Arbitrator in making the decision. The referral to the AMS enables parties to attempt to resolve the dispute, which falls within the guidelines of the Commission;
question five falls within the ambit of section 319(a) and (b) of the 1998 Act;
question six also falls within the ambit of section 319 of the 1998 Act and relates to the worker’s condition, his prognosis, the aetiology of the condition and the worker’s fitness for employment;
the submissions made by Mr Fraczyk’s solicitor are too strict in the interpretation of section 319 of the 1998 Act, and the intention of the section is to define where there is a medical dispute between the parties, and the issue of a medical dispute may have other elements, such as impairment and incapacity, as in this case.
DISCUSSION AND FINDINGS
Section 319 of the 1998 Act
Section 319 of the 1998 Act provides:
“319 Definitions
In this Act:
. . . . . .
medical dispute means a dispute between a claimant and the person on whom a claim is made about any of the following matters or a question about any of the following matters in connection with a claim:
(a)the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided),
(b) the worker’s fitness for employment,
(c)the degree of permanent impairment of the worker as a result of an injury,
(d) whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality, and the extent of that proportion,
(e) the nature and extent of loss of hearing suffered by a worker,
(f) whether impairment is permanent,
(g) whether the degree of permanent impairment of the injured worker is fully ascertainable.”
The Workers Compensation Legislation Amendment Bill 2001 (No. 2) amended the 1987 Act and 1998 Act to make further provisions for claims procedures, dispute resolution, commutation, lump sum compensation and other matters. The Workers Compensation Legislation Amendment Act 2001 No. 61 was assented to on 17 July 2001 and inserted section 319 in its original form as follows:
“319 Definition
In this Act:
. . . . . .
medical dispute means a dispute between a claimant and the person on whom a claim is made as to:
(a)the worker’s condition (including the worker’s prognosis, the aetiology of the condition, and the treatment proposed or provided), or
(b) the worker’s fitness for employment.”
The Explanatory notes relating to this Bill states:
“… (k) Part 7 deals with the appointment of approved medical specialists and the assessment by them of medical disputes. The assessment of degree of permanent impairment is required to be in accordance with WorkCover Guidelines. An assessment of a medical dispute by an approved medical specialist will only be conclusive as to degree of permanent impairment, proportion of impairment due to previous injury, extent of loss of hearing and whether an impairment is permanent.”
The Workers Compensation Legislation Further Amendment Bill 2001 introduced the current version of section 319 of the 1998 Act. During the Second Reading Debate on 29 November 2001, Ms Lee Rhiannon, Member for the Greens, moved the Greens amendment in relation to Schedule 1.2 [7] Section 319 Definitions, stating:
“The bill's definition of a medical dispute, as set out in proposed section 319, requires an approved medical specialist to make a finding about the degree to which a previous injury or pre-existing condition contributes to an impairment. This would require the approved medical specialist to make a finding of causation, which is not a medical matter and hence not something that a medical specialist is qualified or trained to comment upon. The amendments delete the need for this by removing the reference to pre-existing conditions. The Greens believe that these matters should be resolved in the court, and adopting the amendments would facilitate that. I commend the amendments to the Committee.”
The Honourable John Della Bosca, who at that time was Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast, stated without further elaboration, that the Government opposed the amendments. The Greens proposed amendments were “negatived”. The Workers Compensation Legislation Further Amendment Act 2001 No. 94 was assented to on 6 December 2001.
The Workers Compensation Legislation Further Amendment Bill 2001 Explanatory Notes lends no further assistance in understanding the policy or intention behind the introduction of section 319 in its current form. It notes that Schedule 1.2 amends the 1998 Act to introduce the following new pre-litigation procedures and processes for common law work injury damages claims which include:
“…d) If there is a dispute as to the degree of permanent impairment of the injured worker, court proceedings for common law work injury damages cannot be commenced until the degree of permanent impairment has been assessed by an approved medical specialist.”
It appears that the Government, in opposing the Greens proposed amendments to section 319, sought to broaden this section by including the reference to pre-existing conditions in section 319(d), relating to permanent impairment. No relevant discussion or debate occurred when the matter came before the Legislative Assembly, that assists this consideration any further. In any event, permanent impairment is not a relevant consideration in this appeal.
Case law
In Singh v Commonwealth of Australia [2004] HCA 43 (‘Singh’) McHugh J, in discussing constitutional interpretation, refers to the general rules of statutory interpretation and states at para [52]:
“… The fundamental rule of statutory interpretation is that the meaning of an enactment is the meaning that its makers intended. Intention in the context of statutory interpretation is "an obvious fiction". But it is a useful judicial construct because the judge is required to make the choices that best express the statutory text's meaning. In the case of the Constitution, the intention is that of those who framed it. Their intention is determined objectively. Their subjective beliefs and assumptions as to its meaning are irrelevant "
In referring to the meaning of words in a text, Gleeson CJ in Singh states at para [12]:
“Meaning is always influenced, and sometimes controlled, by context. The context might include time, place, and any other circumstance that could rationally assist understanding of meaning.”
His Honour further states at para [19]:
“… As Kitto J said, references to intention must not divert attention from the text, for it is through the meaning of the text, understood in the light of background, purpose and object, and surrounding circumstances, that the legislature expresses its intention, and it is from the text, read in that light, that intention is inferred. The words "intention", "contemplation", "purpose", and "design" are used routinely by courts in relation to the meaning of legislation. They are orthodox and legitimate terms of legal analysis, provided their objectivity is not overlooked.”
In Baker v The Queen (2004) HCA 45 (‘Baker’) Gleeson CJ provides the following observations at paragraph [14], in relation to statutory interpretation:
“Section 31 of the Interpretation Act 1987 (NSW) provides that an Act shall be construed so as not to exceed legislative power. In Residual Assco Group Ltd v Spalvins, Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:
‘If the choice is between reading a statutory provision in a way that will invalidate it and reading it in a way that will not, a court must always choose the latter course when it is reasonably open. Courts in a federation should approach issues of statutory construction on the basis that it is a fundamental rule of construction that the legislatures of the federation intend to enact legislation that is valid and not legislation that is invalid.’
As Bowen LJ said in Curtis v Stovin, ‘if it is possible, the words of a statute must be construed so as to give a sensible meaning to them’.
[15] It is inappropriate and impermissible to use speeches made in Parliament to seek to evade the statutory command in s31 of the InterpretationAct, or fundamental principles of statutory interpretation. The use that can be made of such extrinsic material is governed by s34 of the InterpretationAct. Where a dispute about the meaning of a statutory provision, such as that involved in the present case, arises the Court is not entitled to treat what was said by a Member of Parliament in the course of political debate as some kind of evidence of legislative bad faith. The duty of the Court, reinforced by the InterpretationAct, in the light of which all New South Wales legislation is enacted, is to give meaning to the whole of s 13A unless it is impossible to do so.”
In Deputy Commissioner of Taxation v Clark [2003] NSWCA 91 (‘Clark’) Spigelman CJ states at paragraph [115]:
“The contemporary approach to statutory interpretation is literal but not literalistic and requires words to be construed in their total context. (See e.g. CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 at 408; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].)”
In Solution 6 Holdings Limited & Ors v Industrial Relations Commission of NSW & Ors [2004] NSWCA 2000 (‘Solution 6 Holdings’) Spigelman CJ states at [81]:
“… In contemporary Australian jurisprudence, a purposive approach to interpretation is to be adopted, not a narrow literalism. That approach is expressed in a joint judgment of Brennan CJ, Dawson, Toohey and Gummow JJ in CIC Insurance Limited v Bankstown Football Club Limited (1995) 187 CLR 384. (See also the joint judgment of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc v Australian Broadcasting Authority at [69]), and the joint judgment of McHugh ACJ, Gummow and Hayne JJ in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 78 ALJR 585 at [11].) The Courts no longer ‘make a fortress out of the dictionary’ Cabell v Markham 148 F 2d 737 (1945) at 739 per learned Hand J.
[82] The CIC Insurance judgment (at 408) said:
‘... [T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses `context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd [(1986) 6 NSWLR 363 at 388], if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent.’ [Emphasis added].’”
In relation to a “medical dispute” section 319 contains the expression “in connection with a claim”. The phrase “connected with” is discussed in D C Pearce and R S Geddes, Statutory Interpretation in Australia, 5th ed, 2001 at [12.8]:
“ ‘Connected with’ or ‘in connection with’ are words ‘capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote’: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 at 10. ‘The word ‘connection’ is both wide and imprecise’: Collector of Customs v Cliffs Robe River Iron Associates (1985) 7 FCR 271 at 275… Various synonyms have been suggested from time to time for the phrase: ‘having to do with’ (Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638); ‘in the course of’ or ‘forming part of’ (Dawson Hoffman Brick and Potteries Ltd [1924] VLR 208), both of which cases were referred to by a Full Federal Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 175 ALR 503 at 509. In the Cliffs Robe River case, the court noted as one of the expression’s common meanings ‘relation between things one of which is bound up with, or involved, in another’.
However, whatever use these other expressions might be, the judgment of connection at the end of the day depends upon the statutory context in which the words are used: Singh’s case, above; … However one thing is clear that the expression does not require a causal connection between the matters said to be connected: Perrett v Commnr for Superannuation (1991) 23 ALD 257 at 262; Singh’s case, above.”
Spicer Axle made reference to the decision, Jim Giovas v Rail Infrastructure Corporation WCC18022-04, of a Commission Arbitrator, as a guide. As stated, this was a costs dispute, determined by an Arbitrator. Relevantly, at paragraph 13, the Arbitrator observed:
“It is true that a dispute might have more than one facet, for example involving an issue as to whether or not a claim had been duly made or that the Applicant was a worker.”
Again, at paragraph 15 the Arbitrator states:
“Clearly, in this case the appropriate category was a permanent impairment dispute, despite the fact that it may have had additional issues.”
Finally, he says at paragraph 16:
“It seems quite apparent that although the dispute may have other elements, the fact that involves has [sic] here a dispute over the degree of permanent impairment, it is a medical dispute …”.
Before proceeding to consider each of the six questions, it is necessary to observe that section 326(1) of the 1998 Act provides that an assessment is conclusively presumed to be correct as to, the degree of permanent impairment of a worker as a result of an injury; whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality; the nature and extent of loss of hearing suffered by a worker; whether impairment is permanent, and whether the degree of permanent impairment is fully ascertainable. Section 326(2) of the 1998 Act provides that as to any other matter, the assessment certified is evidence (but not conclusive evidence) in any such proceedings. Section 326(2) is relevant to a consideration of the questions that were referred to the AMS by the Arbitrator, and ultimately, to the determination of this appeal.
As to question 1: Was the workers’ employment a substantial contributing factor to his injuries?
Mr Fraczyk is correct in his submission that this specific question is a matter for determination by the Arbitrator. However, the matters referred for assessment pursuant to section 326 of the 1998 Act are the matters that form part of a medical dispute and upon which an AMS is empowered to provide an opinion (Phillip John Carmody v Walter Merriman & Sons Pty Ltd [2003] NSW WCC PD 27 (‘Carmody’). As observed in Carmody, each AMS is appointed for his or her particular medical expertise, which is matched to the nature of the injury suffered by the worker in any particular case that is referred to an AMS. The only restriction that is imposed upon an AMS is, as I have said, that he or she is not empowered to determine matters other than those set out in the statute. In Carmody, the Deputy President stated:
“There is no express, or implied, intention in the relevant provisions to limit the application of the AMS’s medical expertise in the assessment of the particular ‘matters’ referred to him or her in a dispute. In relation to those ‘matters’ specified in section 326(1), the AMS’s opinion will be binding on the parties and the Commission.”
The Arbitrator is not bound by any opinion expressed by the AMS in relation to this question. I agree with the position as stated by the Medical Appeal Panel in Evan Woodbury v Peter Miles and Annie Miles, WCC19007-2003 on 14 February 2005 at paragraph 32 of the ‘Statement of Reasons for Decision’:
“The AMS is entitled to provide an opinion on this [sic] issue, as the aetiology of the knee injury is a matter that falls within the definition of medical dispute provided [sic] s 319 of the 1998 Act … However, the AMS’s opinion on this is not a matter that is conclusively presumed to be correct. Consequently, a dispute between the parties in relation to whether this injury arose out of or in the course of employment, or whether employment was a substantially [sic] contributing factor to the injury, is a matter that must be determined by the Arbitrator.”
This view is consistent with the decision of the New South Wales Court of Appeal decision in Solution 6 Holdings, referred to above. The question posed by the Arbitrator in the instant case, although ultimately a matter for determination by him, is a “question about” a matter in section 319 (a) of the 1998 Act (see discussion in paragraph 40, above) on which the Arbitrator sought an opinion. It seems to me that upon an objective view, the intention of the Legislature was not to restrict the AMS in the way that is suggested by the Appellant, nor therefore, to restrict the Arbitrator in seeking an opinion from the AMS (See Singh, above). Moreover, the section must be read in the context of Part 7 of the 1998 Act and in that context, it is clear that opinions of AMSs that are not determinative, are nevertheless contemplated, and that it is expected that they will bring their medical expertise to bear in relation to “matters” that fall within the definition of section 319 of the 1998 Act (See section 326(2) of the 1998 Act and also, judgments in Baker, Clark and Solution 6 Holdings, above. See also Commission appeal decision in Carmody, referred to at paragraph 45, above).
For these reasons, I find that the question falls within the ambit of section 319(a) of the 1998 Act and that the Arbitrator was entitled to put the question to the AMS. Ultimately, however, as I have said, this is a question for determination by the Arbitrator, based upon the evidence that is before him, including the opinion of the AMS as included in the MAC.
As to question 2: Was the worker’s employment a substantial contributing factor to his condition from 04/04/2002 to date and continuing?
Mr Fraczyk submits and I agree, that this question is an extension of the first question. Consequently, for the same reasons, I find that it falls within the ambit of section 319(a) of the 1998 Act and that the Arbitrator was entitled to put the question to the AMS. Again, the question is ultimately for determination by the Arbitrator, on a consideration of all of the evidence.
As to question 3: Was the worker totally incapacitated for any employment from 04/04/2002 to date and continuing? If so please specify the extent to which it was attributable to the injuries or the nature and conditions of his employment or the aggravation, exacerbation or acceleration of a disease, or any degenerative or constitutional condition, or any underlying disease or other non-work related condition.
I agree with Spicer Axle in relation to this question, that seeking an opinion as to incapacity for “any employment” is synonymous with seeking a view about a worker’s fitness for employment, pursuant to section 319(b) of the 1998 Act, notwithstanding that the precise words of the section were not used by the Arbitrator. Moreover, the details of the response required by the Arbitrator fall within the ambit of section 319(a) of the 1998 Act, in my view.
For these reasons and having regard to the discussion in paragraphs 27 to 44, above, I find that the Arbitrator was entitled to put the question to the AMS for an opinion and that the question falls within the ambit of section 319 of the 1998 Act.
As to question 4: If the worker was not totally incapacitated for any employment for the above periods, was the worker partially incapacitated and fit for any alternative employment. If so what duties was he capable of performing and what, if any restrictions should have been placed on the worker in performing those duties, and how many hours per week do you consider the worker was capable of performing in those duties?
Again, the AMS is able to provide an opinion, at least in part, in response to this question. Ultimately, it is a matter for determination by the Arbitrator. It is for the Arbitrator to consider what weight, if any, he attaches to the opinion of the AMS and to what extent he considers that the AMS is able to respond, effectively. (See also, Rule 70). That qualification of itself does not preclude the question being put to the AMS in the first instance. Accordingly, I find that the question falls within the ambit of section 319 of the 1998 Act.
As to question 5: If the worker was partially incapacitated for employment for the above periods, please specify the extent to which it was attributable to the injuries, the nature and conditions of his employment or the aggravation, exacerbation or a disease, or any degenerative, or constitutional condition, or any underlying disease, or other non-work related condition?
For the reasons set out in the preceding paragraphs, I find that in the same circumstances, the question falls within the ambit of section 319 of the 1998 Act.
As to question 6: To what extent was the worker capable of working for the above periods if he did not have any degenerative or constitutional condition, or any underlying disease or other non-work related condition?
The Appellant submits that this question is difficult to understand and that it does not fall within the ambit of section 319 of the 1998 Act. However, as broadly as the question is expressed, it relates to Mr Fraczyk’s medical condition, the prognosis, the aetiology of his condition and his fitness for employment. Again, it is a matter for the Arbitrator to determine the weight if any, that he will place upon the opinion expressed in the MAC by the AMS.
Accordingly, I find that the question does fall within the ambit of the section and that the Arbitrator was entitled to put it to the AMS for opinion.
Conclusion
Mr Fraczyk also submits that many of the questions have several elements and if one element is incorrect, it “kills” the whole question. However, having regard to the fact that the AMS does not determine any of the issues that are put to him, such a strict interpretation is not appropriate, and in my view, was not intended by the Legislature. I agree with Spicer Axle that Mr Fraczyk’s interpretation of section 319 of the 1998 Act is too strict. As indicated above, the relevant sections of the Act make provision for non-determinative medical opinion to be expressed by the AMS, and in this matter, the Arbitrator has not asked the AMS to exceed his powers in this regard. All of the questions, to a greater or lesser extent, refer to Mr Fraczyk’s medical condition, the prognosis, the aetiology of his condition and his fitness for employment. Consequently, I find that each of the six questions falls within the ambit of section 319 of the 1998 Act and the Arbitrator was entitled to refer them to the AMS pursuant to section 321 of that Act.
Accordingly, I find that the Arbitrator has not erred in relation to the questions that he has put to the AMS in his amended referral of 3 November 2006.
DECISION
The appeal is not successful. The decision of the Arbitrator is confirmed.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
16 February 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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